Citation Nr: 0116317
Decision Date: 06/14/01 Archive Date: 06/19/01
DOCKET NO. 94-47 125 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Whether new and material evidence has been presented to
reopen a claim for service connection for an eye disorder.
2. Entitlement to a disability rating higher than 30 percent
for post-traumatic stress disorder during the period from
June 29, 1994, to April 1, 1998.
3. Entitlement to an effective date earlier than April 2,
1998, for assignment of a total disability rating based on
individual unemployability due to service-connected
disabilities.
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from January 1956 to December
1958, and from January 1959 to February 1976.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from decisions by the Department of
Veterans Affairs (VA) Montgomery, Alabama, Regional Office
(RO). In November 1994, the RO denied service connection for
post-traumatic stress disorder and denied a total disability
rating based on unemployability due to service-connected
disabilities. In a decision of November 1996, the RO
determined that new and material evidence had not been
presented to reopen a claim for service connection for an eye
disorder. In February 1999, the RO granted service
connection for post-traumatic stress disorder, and assigned a
70 percent rating effective from April 2, 1998. In June
1999, the RO granted a total rating based on unemployability
due to service-connected disabilities. In a decision of June
1999, the RO granted an effective date of April 2, 1998, for
the award of a total rating based on individual
unemployability due to service connected disabilities.
The Board remanded the case for additional development in
April 2000. In a decision of March 2001, the RO extended the
effective date for the grant of service connection for post-
traumatic stress disorder back to June 29, 1994, and assigned
a 30 percent rating for the period from June 29, 1994, until
April 2, 1998. The case is now ready for appellate review.
The Board notes that in June 2000, the veteran submitted
written argument to the Board along with copies of items of
evidence. Much of the evidence which has been presented is
duplicative of evidence which is already contained in the
claims file. The Board has considered the arguments made by
the veteran and this evidence when rendering this decision.
The Board has noted that some of the veteran's arguments
pertain to issues which are not developed for appellate
review, such as a claim for service connection for diabetes
mellitus, and claims for increased ratings for a back
disorder and a right leg disorder. The Board refers those
claims to the RO for any appropriate action.
The Board has found that additional development of evidence
is required with respect to the claim for a higher rating for
post-traumatic stress disorder during the period from June
29, 1994, to April 1, 1998, and for the claim for an earlier
effective date for a total rating based on unemployability.
Accordingly, those issues are addressed in a remand located
at the end of this decision.
FINDINGS OF FACT
1. The Board denied the veteran's claim for service
connection for an eye disorder in a decision of August 26,
1992.
2. The additional evidence presented since August 26, 1992,
is not so significant that it must be considered in order to
fairly decide the merits of the claim for service connection
for an eye disorder.
CONCLUSIONS OF LAW
1. The Board decision of August 26, 1992, which denied
service connection for an eye disorder is final. 38 U.S.C.A.
§§ 5108, 7104 (West 1991 & Supp. 2000); 38 C.F.R. § 3.156
(2000).
2. The additional evidence presented since August 26, 1992,
is not new and material, and the claim for service connection
for an eye disorder has not been reopened. 38 U.S.C.A.
§§ 5108, 7104 (West 1991 & Supp 2000); 38 C.F.R. § 3.156
(2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by service. See
38 U.S.C.A. §§ 1110, 1131. The veteran contends that the RO
made a mistake by failing to reopen and grant his claim for
service connection for an eye disorder. He asserts that his
current eye problems are attributable to a shrapnel wound
injury which occurred in service. His service-connected
disabilities currently include (among others) shell fragment
wound scars of the right temple, rated as noncompensably
disabling.
The Board previously denied the veteran's claim for service
connection for an eye disorder in a decision of August 26,
1992. That decision is final. 38 U.S.C.A. §§ 5108, 7104.
The evidence which was considered at the time of the previous
decision included the veteran's service medical records which
showed that he sustained shell fragment wounds in April 1968.
He was hosptialized and examination showed a superficial
metal fragment in the right parietal area of the scalp. A
second fragment was seen in close vicinity to the right
lateral orbital wall. The radiologist commented that it was
probably not related to the globe, but located far laterally.
The veteran was referred for an ophthalmology consultation.
The examination showed exophoria for near vision. However,
the finding of exophoria was not confirmed by subsequent
examination of the veteran's eyes. A service eye examination
a few months later revealed no eye abnormality. His distant
vision was 20/20 in each eye, and his near vision was J-1 in
each eye. Similar findings were reported on an annual
examination in August 1992. The veteran's retirement
examination in January 1976 also revealed normal eyes.
Uncorrected distant and near vision was 20/20 in each eye.
The Board further noted in the previous decision that the
veteran's initial application for disability compensation in
March 1976 did not mention an eye disorder. A VA examination
in April 1976 showed that uncorrected visual acuity was 20/16
on the right and 20/20 on the left. His pupils were equal
and regular, and reacted to light and accommodation.
Extraocular movements and visual fields were within normal
limits.
It was not until many years after separation from service
that there was any reference to an eye disorder. In a
medical report of March 1990, it was noted that the veteran
complained of intermittent diplopia (double vision) and
stated that he had a metal fragment behind his left eye. A
medical record dated in March 1990 from R. D. Dobbs showed
that the veteran complained of having very rare diplopia, and
that examination revealed a minimal extraocular movement
disorder with a slight right hypotropia. Double vision was
not found on that examination. The Board also noted that a
post-service record received in 1991 reflected that the
veteran complained that his left eye had intermittent
floating.
After reviewing the evidence which was of record, the Board
concluded that, in the absence of evidence of a chronic eye
disorder during service or for many years later, an eye
disorder neither originated in service nor was associated
with any incident therein.
When a veteran seeks to reopen a final decision, the VA must
determine whether new and material evidence has been received
under 38 U.S.C.A. § 5108 and 38 C.F.R. § 3.156(a). "New and
material evidence" means evidence not previously submitted
to the agency decision makers which bears directly and
substantially on the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with the evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. See 38
C.F.R. § 3.156.
The reopening standard calls for judgments as to whether new
evidence (1) bears directly or substantially on the specific
matter, and (2) is so significant that it must be considered
to fairly decide the merits of the claim. See Fossie v.
West, 12 Vet. App. 1 (1998). Some evidence may well
contribute to a more complete picture of the circumstances
surrounding the origin of a veteran's injury or disability
and is, therefore, new and material. See Hodge v. West, 155
F.3d 1356, 1363 (Fed. Cir. 1998). If no new and material
evidence is presented to reopen the claim, the prior denial
remains final. See 38 U.S.C.A. § 7104.
During the pendency of this appeal, on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000).
Significantly, however, nothing in that law requires the VA
to reopen a claim that has been disallowed except when new
and material evidence has been secured and presented. See
38 U.S.C.A. § 5103(f).
The additional evidence which has been presented since the
August 26, 1992, decision includes a duplicate copy of the
previously considered record in which the veteran complained
of left eye floating.
The additional evidence also includes post-service treatment
records from many years after service. Records from a
service facility dated in April 1991 show that the veteran's
eyes were tested and he obtained a pair of glasses. A record
from a service medical facility dated in January 1994 shows
that the veteran again complained of having a floater in the
eye. The assessment included rule out metallic foreign body
in the right orbit, and history of intermittent diplopia. An
X-ray report dated in January 1994 reflects that an X-ray of
the skull revealed a metallic foreign body in the region of
the inferolateral aspect of the left orbit. The radiologist
noted, however, that it had been mislabeled by the
technician, and this qualified as the right orbit. It was
stated that given its position it may lie extrinsic to the
globe. Nevertheless, the radiologist stated that if there is
a high index of suspicion clinically that this is
intraocular, then a CT of the orbits should be obtained. An
X-ray skull radiographic interpretation addendum dated in
December 1997 shows that the diagnosis was right orbital area
foreign body.
A treatment record dated in May 1997 shows that the veteran
reported a complaint of a scratchy right eye. He gave a
history of a shrapnel wound above the right eye and felt that
the metal was moving down on the lid. The diagnosis was
chalazion RUL (right upper lid). A treatment record dated in
March 1999 shows that the veteran reported having trouble
reading and driving. The impression was cataract OU (both
eyes).
The Board notes that the additional X-ray report shows
essentially the same information as was contained in the X-
ray report in the veteran's service medical records. It was
already established by the veteran's service medical records
that he has a retained foreign body near his eye. Thus, the
recent X-ray report showing that same thing is duplicative
and redundant with respect to these records. The additional
evidence does not include any competent medical evidence to
show that any current eye disorder, such as the cataracts or
the chalazion, was incurred in or aggravated by service. For
the foregoing reasons, the Board finds that the additional
evidence presented since August 26, 1992, is not so
significant that it must be considered in order to fairly
decide the merits of the claim for service connection for an
eye disorder. Accordingly, the decision of August 26, 1992,
which denied service connection for an eye disorder remains
final.
ORDER
New and material evidence has not been presented to reopen a
claim for service connection for an eye disorder. The appeal
is denied.
REMAND
As noted above, there has been a significant change in the
law during the pendency of this appeal. On November 9, 2000,
the President signed into law the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000).
This law redefines the obligations of VA with respect to the
duty to assist and includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. This law also
eliminates the concept of a well-grounded claim and
supersedes the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded. This change in the law is applicable to
all claims filed on or after the date of enactment of the
VCAA, or filed before the date of enactment and not yet final
as of that date. Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-
2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
Because of the change in the law brought about by the VCAA, a
remand in this case is required for compliance with the
notice and duty to assist provisions contained in the new
law. In addition, because the RO has not yet considered
whether any additional notification or development action is
required under the VCAA, it would be potentially prejudicial
to the appellant if the Board were to proceed to issue a
decision at this time. See Bernard v. Brown, 4 Vet. App. 384
(1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992)
(published at 57 Fed. Reg. 49,747 (1992)). Therefore, for
these reasons, a remand is required.
It is the RO's responsibility to ensure that all appropriate
development is undertaken in this case. However, in an
effort to assist the RO, the Board has reviewed the claims
file and identified certain assistance that must be rendered
to comply with the VCAA. The Board's review of the claims
file reveals that additional relevant evidence is available.
The report of a post-traumatic stress disorder examination
conducted by the VA in December 1998 shows that the veteran
gave a history of receiving treatment for post-traumatic
stress disorder on an outpatient basis at the "West Campus,
Montgomery" from 1992 until 1997. It appears that this may
refer to a VA facility. In any event, the records from such
treatment facility have not been obtained. Although records
were obtained from the Montgomery VA Medical Center in July
1999, the records pertained only to physical disorders and
did not include any psychiatric treatment records. It is
possible that records from the mental health clinic may be
stored separately. They must be obtained as they are
required for proper resolution of the remaining issues
because they may contain relevant information. See Littke v.
Derwinski, 1 Vet. App. 90 (1991).
Accordingly, this case is REMANDED for the following:
1. The RO should obtain the names and
addresses of all medical care providers
who have treated the veteran for his
service-connected post-traumatic stress
disorder. After securing the necessary
releases, the RO should obtain these
records, including records from the
"West Campus, Montgomery" facility.
2. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.
3. Thereafter, the RO should readjudicate
the claims. If any of the benefits sought
on appeal remain denied, the appellant and
the appellant's representative should be
provided a supplemental statement of the
case (SSOC). The SSOC must contain notice
of all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
JEFF MARTIN
Member, Board of Veterans' Appeals